R v Danishyar

1. [1]

   N ADAMS J: I agree with the orders proposed by Ierace J for the reasons provided by his Honour.

2. [2]

   IERACE J: Pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), the Director of Public Prosecutions of New South Wales (the DPP) appeals against an aggregate sentence of imprisonment that was imposed on Mirwais Danishyar (the respondent) by his Honour Judge Whitford SC (the sentencing judge) in the District Court in Sydney on 28 June 2024. The respondent received an aggregate sentence of 8 years imprisonment, to commence on 28 August 2028 and expire on 27 August 2036, with a non-parole period of 6 years, to expire on 27 August 2034 (the appealed sentence). The sole ground of appeal, which was advanced in a notice of appeal filed on 26 July 2024, is that the sentence imposed was manifestly inadequate.

3. [3]

   At the time that the respondent was sentenced, he was serving three other sentences. The effective overall sentence for those three sentences was 23 years, 8 months and 30 days, which commenced on 29 November 2016 and will expire on 27 August 2040, with a non-parole period of 18 years, 8 months and 30 days, which will expire on 27 August 2035. Accordingly, the appealed sentence is wholly concurrent with that existing overall sentence and, consequent to the concurrency of the non-parole periods, the respondent did not incur any discrete custodial punishment for the offences for which he was sentenced (the appeal offences). Although the Crown submits that the aggregate sentence imposed was manifestly inadequate, the essence of its appeal is that absence of accumulation on the overall non-parole period.

Background to the appeal

1. [4]

   The Crown’s ground of appeal, as refined, requires a consideration of the sentences that the respondent was serving at that time (the pre-existing sentences) against the appealed sentence.

2. [5]

   The respondent was convicted, following a trial, of two counts arising from the murder of Pasquale Barbaro on 14 November 2016, namely, murder as an accessory before the fact contrary to s 346 of the Crimes Act 1900 (NSW) and that he was an accessory after the fact of the murder, contrary to s 347 of the Crimes Act (the Barbaro offences). The offence of murder has a maximum penalty of imprisonment for life or 25 years and if a determinate sentence is imposed, in the circumstances of the Barbaro offences, a standard non-parole period of imprisonment for 20 years: s 18(1)(a) of the Crimes Act and Pt 4, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act). The accessory after the fact offence has a maximum penalty of 25 years’ imprisonment: s 349(1) of the Crimes Act.

3. [6]

   On 17 December 2021, Fagan J sentenced the respondent for the murder offence to 15 years’ imprisonment with a non-parole period of 11 years, backdated to commence on the date of the respondent’s arrest on 29 November 2016, and for the accessory after the fact offence to a fixed term of 2 years imprisonment, expiring 12 months after the expiry of the non-parole period for the murder offence: R v Sultani; R v Munshizada; R v Baines; R v Danishyar [2021] NSWSC 1654.

4. [7]

   The Crown appealed to this Court, contending manifest inadequacy of the murder sentence (ground 1) and a failure to accumulate the sentence for the second offence “to any extent” (ground 2). Ground 1 was upheld and ground 2 was dismissed. The Court re-sentenced the respondent for the murder offence to imprisonment for 20 years, with the same commencement date and expiring on 28 November 2036, with a non-parole period of 15 years, expiring on 28 November 2031: Danishyar v R; R v Danishyar [2023] NSWCCA 300 (the Barbaro sentence). The Court declined to re-sentence the respondent for the accessory after the fact offence, which was now wholly concurrent with the non-parole period for the murder offence. The Court dismissed an appeal by the respondent against his conviction and sentence.

5. [8]

   On 5 April 2024, the respondent was sentenced by N Adams J for the offence of accessory before the fact to the murder of Michael Davey pursuant to s 346 of the Crimes Act: R v Danishyar (No 2) [2024] NSWSC 353 (the Davey offence). The respondent entered a late plea of guilty for which he received a 10 per cent discount. He was sentenced to imprisonment for 10 years 9 months, to commence on 28 November 2029 and expire on 27 August 2040, with a non-parole period of 4 years 9 months, to expire on 27 August 2034. The ratio of the non-prole period to the total sentence handed down by her Honour (the non-parole period ratio) was 44 per cent. Her Honour noted that the overall sentence, incorporating the Barbaro sentence, was 23 years and 9 months, with an overall non-parole period of 17 years and 9 months. Her Honour, at [167]-[168], found special circumstances, exclusively on the basis of the need to maintain an overall non-parole period ratio of approximately 75 per cent. The overall non-parole period ratio was now 74.7 per cent.

6. [9]

   On 27 June 2024, the respondent was sentenced by Jeffreys DCJ, following a plea of guilty to the common law offence of unlawfully disposing of a corpse (the Corpse offence), to 2 years imprisonment, commencing on 28 February 2034 and expiring on 27 February 2036, with a non-parole period of 1 year to expire on 27 February 2035, thus constituting a non-parole period ratio of 50 per cent. This sentence added 6 months to the overall non-parole period, which was now 18 years and 3 months, and was otherwise concurrent.

7. [10]

   The appeal offences were in three sequences to which the respondent had pleaded guilty. Since the Crown does not challenge the sentencing judge’s findings, the indicative sentences or the adequacy of the aggregate sentence, it is unnecessary to canvass in detail the facts of the individual offences.

8. [11]

   The offence to which the applicant first entered a guilty plea, which was in the Local Court on 13 August 2020, was a supply of a large commercial quantity of a prohibited drug, being 500g of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the Agreement to Supply offence). The maximum penalty for that offence is imprisonment for life and/or 5000 penalty units. It has a standard non-parole period of 15 years imprisonment. An offence of supplying an indictable quantity of a prohibited drug, being 56.7g of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act, was taken into account on a Form 1 (the Form 1 offence). The maximum penalty is 15 years imprisonment and/or 2000 penalty units.

9. [12]

   The sentencing judge found that the objective criminality of the offence fell “towards the lower end of the spectrum” and gave an indicative sentence of imprisonment for 5 years 3 months, with a non-parole period of 3 years 11 months, taking into account a 25 per cent discount for the respondent’s early guilty plea.

10. [13]

    On 18 August 2022, the respondent entered pleas of guilty in the Local Court to two counts of threaten a public justice official, contrary to s 326(1)(c) of the Crimes Act (the Threaten offences). The maximum penalty is imprisonment for 10 years. The offending behaviour was verbal threats made by the respondent during his trial before Fagan J for the Barbaro offences, while in the court room and directed against the Crown Prosecutor and the DPP instructing solicitor. The objective seriousness was found to be “toward the lower end of the scale”. The respondent received an indicative sentence of 1 year and 6 months imprisonment for each count, taking into account a 25 per cent discount for his early guilty plea. The sentencing judge found there was an absence of remorse for these offences.

11. [14]

    On 28 April 2023, the respondent pleaded guilty in the District Court to three offences on the one indictment. The first was a count of participating in a criminal group, knowing that it was a criminal group and knowing that his participation contributed to the occurrence of criminal activity, contrary to s 93T(1) of the Crimes Act (the Participate offence), which has a maximum penalty of 5 years imprisonment. The indicative sentence for that offence was 1 year and 9 months, taking into account a 10 per cent discount for the respondent’s guilty plea.

12. [15]

    The second was a count of take and drive a conveyance without the consent of the owner, contrary to s 154A(1)(a) of the Crimes Act (the Take and Drive offence), which also has a maximum penalty of 5 years imprisonment. His Honour noted that the Prosecutor accepted that the threshold of s 5 of the Sentencing Procedure Act was not crossed and disposed of that offence pursuant to s 10A of that Act, with no penalty beyond conviction.

13. [16]

    The third was a count of supplying a prohibited drug, being cannabis, contrary to s 25(1) of the Drug Misuse and Trafficking Act, for which the maximum penalty is imprisonment for 15 years. The offence involved a joint criminal enterprise utilising various drivers to deliver cannabis to purchasers (the Pot Run offence). His Honour found the objective seriousness of the offence was “towards the lower end of the scale” and indicated a sentence of 2 years imprisonment, taking into account a 10 per cent discount for the respondent’s guilty plea.

14. [17]

    The sentence hearing commenced on 10 November 2023. The Threaten offences were prosecuted by the Attorney General, for whom the Crown Advocate appeared. A Crown Prosecutor, instructed by the DPP, prosecuted the other two sequences. The hearing was stood over, part heard, to allow for the delivery of the judgment of this Court following the Barbaro appeal and the handing down of the sentence for the Davey offence. The parties made additional submissions on 17 June 2024. The matter was again stood over to a date after the handing down of the sentence by Jeffreys DCJ for the Corpse offence.

The parties’ submissions to the sentencing judge concerning totality

1. [18]

   Counsel for the respondent noted that the respondent had commenced serving his overall sentence when he was aged 23. It was submitted in writing that a finding of special circumstances was necessary, as well a sentence commencement date that would deliver “significant if not complete concurrency”, in order to avoid a crushing overall sentence and to reduce the risk of institutionalisation, relying upon observations of Malcolm CJ in Clinch v R (1994) 72 A Crim R 301 at 307, to the effect that the severity of a custodial sentence increases disproportionately to its length. In oral submissions, that position was amended:

2. [19]

   In written submissions, the Crown Advocate acknowledged the correctness of the observation by Malcolm CJ in Clinch v R and anticipated a high degree of concurrency in the pending sentence, adding:

3. [20]

   Similarly, as to the balance of the offences, the Crown Prosecutor submitted in writing that there should be “a modest period of accumulation” on the current overall sentence. Curiously, in later written submissions which post-dated the sentence judgment for the Davey offence, by which time the overall non-parole period ratio was 74.7 per cent, the Crown acknowledged that ratio and submitted that “it would be appropriate for this Court to maintain the same effective ratio”.

4. [21]

   In oral submissions on 17 June 2024, both the Crown Prosecutor and the Attorney General’s legal representative [1] acknowledged that the sentencing judge would not fall into error if the aggregate sentence was structured so that it added “a very, very limited increase to the non-parole period” and the aggregate head sentence was wholly concurrent with the overall head sentence.

5. [22]

   It is apparent from the sentencing judge’s remarks that his Honour was aware of Jeffreys DCJ’s sentence for the Corpse offence, which was handed down the previous day. As noted, the aggregate sentence imposed by his Honour was 8 years imprisonment, to commence on 28 August 2028 and expire on 27 August 2036, with a non-parole period of 6 years, to expire on 27 August 2034, so that the total sentence and the non-parole period were wholly concurrent with the respondent’s overall sentence and overall non-parole period. The sentences to which the respondent is subject may be illustrated in table form as follows, in which the darker portions indicate the non-parole periods and the lighter portions the balance of terms, along with the relevant commencement and expiry dates:

The remarks on sentence

1. [23]

   The sentencing judge’s remarks, insofar as they are relevant to the issue of totality, are as follows. His Honour noted the centrality of that issue in the sentencing exercise when acknowledging a submission by the respondent’s counsel that it was one of three issues of importance in the sentencing exercise:

2. [24]

   The sentencing judge accepted that the “mastermind and leader” of the criminal group was Abuzar Sultani. As to the respondent’s role, his Honour found:

3. [25]

   His Honour said:

4. [26]

   His Honour found that the respondent’s role in the Agreement to Supply offence was to source a potential supplier for the potential sellers and that the drugs were never actually sourced or supplied. There was “probably reasonably substantial overlap” between this offence and the Pot Run offence. As to the Threaten offences, his Honour said:

5. [27]

   His Honour considered the respondent’s subjective case and returned to the issue of totality:

6. [28]

   I note that his Honour’s reference to the then-current overall non-parole period ratio being 74.7 per cent was incorrect; as noted, that was the ratio following the sentence handed down by N Adams J. Following the sentence that was imposed by Jeffreys DCJ, that ratio was 76.8 per cent, which only underscores the issue of concern identified by his Honour.

Submissions on appeal

1. [29]

   As noted, the appeal was prosecuted by the DPP. No point was taken that it was not open to the DPP to do so on behalf of the Attorney General in respect of the Threaten offences.

2. [30]

   The Crown submitted that the sentencing judge placed undue weight on the risk of institutionalisation and a crushing sentence and insufficient weight upon the need for the non-parole period to reflect the objective seriousness of the offences and to take into account other relevant sentencing factors, including general deterrence, denunciation and specific deterrence.

3. [31]

   The Crown submitted that the sentencing judge overlooked the separate nature of the Threaten offences in particular, when finding that the Participate offence “overlapped substantially” with the respondent’s past and present offences. The Crown noted that the Threaten offences were committed at least four years after the other offending and that they did not arise from his participation in the criminal group. Rather, their seriousness would likely be enhanced by the respondent’s ties with a criminal group. Similarly, the Crown submitted that the Agreement to Supply and the Pot Run offences were quite different in nature from the Barbaro and Davey offences.

4. [32]

   The Crown submitted that general deterrence warranted a degree of accumulation; a wholly concurrent sentence for serious drug offences did not send a message to like-minded persons that significant sentences of imprisonment will be imposed for serious drug and related offending. Similarly, an absence of accumulation in respect of the Threaten offences tended to foster a community view of impunity that would create a risk of undermining the authority of the courts and the administration of justice.

5. [33]

   The Crown submitted that the italicised sentence in the extracted passage from his Honour’s remarks at [27] above suggests that the sentencing judge considered that some accumulation on the effective non-parole period was appropriate, but felt constrained by the statutory ratio of 75 per cent.

6. [34]

   The Crown conceded that an increase in a custodial sentence caused a compounding increase in the experienced severity of a sentence, but “a moderate increase” to the overall non-parole period would acknowledge relevant sentencing principles without meaningfully increasing the respondent’s risk of institutionalisation. To this end, the Crown relied upon observations by Beech-Jones J (as his Honour then was) and N Adams J in Lonsdale v R [2020] NSWCCA 267 at [65]-[66]:

7. [35]

   The Crown submitted that the desired result could be achieved by a finding of special circumstances in order to significantly reduce the ratio of the non-parole period to the total sentence, by amending the starting date of the appealed sentence, or by a combination of both.

8. [36]

   The respondent submitted that the appealed sentence was not manifestly inadequate and its structure could not be characterised in that fashion. It was therefore submitted that the appeal must fail. Alternatively, if error has been demonstrated, the appeal should be dismissed in the exercise of this Court’s residual discretion. The respondent’s position was succinctly stated in this paragraph from his written submissions:

9. [37]

   The respondent accepted that there was no absolute rule that an accumulated non-parole period must comprise 75 per cent of the total offence, but submitted that the outcome was in accordance with the factual findings made about the nature of the offending and the respondent’s subjective case, and reflected approaches taken by those judges who had previously sentenced the respondent in maintaining the statutory ratio.

10. [38]

    The respondent submitted that the sentence imposed does not have the effect of undermining public confidence in the administration of justice by suggesting that the respondent has escaped punishment; it was not suggested that the indicative terms were inadequate, the respondent is serving a lengthy overall sentence arising from three separate offences and the sentencing judge was transparent in the application of principle, noting that accumulation might have been appropriate “had circumstances been different”.

Consideration

1. [39]

   In Postglione v R (1997) 189 CLR 295 at 307-308; [1997] HCA 26, McHugh J affirmed observations by Hunt CJ at CL as to how the principle of totality operates when imposing a sentence on an offender serving an existing sentence:

2. [40]

   A considerable degree of flexibility in the exercise of the sentencing discretion is permitted in order to achieve that objective, including by structuring the fresh sentence to be partially, or sometimes wholly, concurrent: Haak v R [2022] NSWCCA 28 at [15], citing Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45]. However, this Court has previously noted the inherent difficulties in such sentencing exercises, for example, in R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 per the Court at [88].

3. [41]

   There is no absolute rule that an accumulated non-parole period must comprise no more than 75 per cent of the total sentence, although if it does, the sentencing judge must advert to the impact of that accumulation: GP v Regina at [21]. It is apparent from the written and oral submissions below that all three parties were of the view that a moderate degree of accumulation was appropriate. The sentencing judge, in observations at the sentence hearing and in the italicised parts of the remarks on sentence extracted at [25] and [27] above, was inclined to accede to that joint position. However, as I understand the remarks, his Honour’s primary concern was to preserve an appropriate period of parole which the respondent would require if he is to be successfully reintegrated into society. His Honour considered that the fact that the overall non-parole period was already approximately equivalent to the statutory ratio was a strong indicator that the limit for accumulation had already been reached. Immediately before handing down the sentence, his Honour said:

4. [42]

   The question on appeal is whether, in all the circumstances of the case, it was an error in the exercise of the sentencing discretion to impose a sentence that was structured so that there was no accumulation, particularly on the overall non-parole period.

5. [43]

   A danger in applying insufficient or no accumulation was noted in R v MAK at [18]:

6. [44]

   In my view, these concerns are enlivened in this case, so that a starting date is warranted that would deliver a modest period of accumulation to the non-parole period, so as to acknowledge that additional offending, particularly the Threaten offences, warranted additional punishment. Accordingly, I find error in the exercise of the sentencing judge’s discretion: House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505.

The residual discretion

1. [45]

   The Crown submits that the residual discretion of this Court to not intervene, arising from the terms of s 5D(1) of the Criminal Appeal Act, should not be exercised in the circumstances of this case. The onus rests on the Crown to persuade the Court to not exercise the discretion: CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [33]-[34] (French CJ and Gageler J) and [56] (Kiefel, Bell and Keane JJ), citing R v Hernando (2002) 136 A Crim R 451 at 458.

2. [46]

   The respondent submits that there are certain matters that the Crown must overcome if it is to discharge that onus. A re-sentence would likely only modestly increase the overall non-parole period, so that it would be a tinkering with the sentence, which favours the discretion being exercised: Dinsdale v The Queen (2000) 202 CLR 321 at [62]. The primary purpose of Crown appeals against sentences is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at [1]-[2] per French CJ, Crennan and Kiefel JJ, quoting Griffiths v The Queen (1977) 137 CLR 293 at 310 per Barwick CJ. However, the overlap of the criminality of many of the appeal offences with the Participate offence reduces the utility of a re-sentence in providing guidance to sentencing judges.

3. [47]

   The Crown submits that the absence of additional punishment for the appeal offences constitutes such a degree of inadequacy so as to risk undermining public confidence in the criminal justice system: Green v The Queen at [42] per French CJ, Crennan and Kiefel JJ. The utility of the judgment would be to provide guidance as to the structure of an appropriate effective sentence that would properly reflect the offender’s overall criminality, in view of the “real risk that the public would perceive that the respondent escaped effective punishment for a diversity of serious criminal behaviour”.

4. [48]

   A matter of some concern in determining whether to exercise the discretion is the submission on sentence prior to the Corpse offence sentence by the Crown Prosecutor that, although a “modest period of accumulation” was required, the overall non-parole period ratio of 74.7 per cent should be maintained, which clearly was impossible. However, I note that in subsequent oral submissions, the Crown Prosecutor submitted that the sentence should be structured so that it was “very close” to the statutory ratio.

5. [49]

   I am satisfied that the residual discretion should not be exercised. While the fresh sentence to be imposed will impact the overall non-parole period, it will be the difference between some additional punishment and none at all. In that sense, it is not tinkering with the sentence. As noted earlier, such situations as that which confronted the sentencing judge are difficult, so that re-sentencing the respondent contributes to the body of appellate caselaw as to how such issues are to be navigated.

Re-sentence

1. [50]

   As error has been found, the Court must exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. I would make the same findings of fact as the sentencing judge concerning the objective seriousness of the offences and the subjective considerations of the respondent. I would hand down an aggregate sentence of the same length, namely an aggregate sentence of imprisonment for 8 years with an aggregate non-parole period of 6 years, with the same indicative sentences. I share the sentencing judge’s concern as to the prospect of institutionalisation facing the respondent, who entered prison at the age of 23 and is to first qualify for release to parole a fortnight before his 42nd birthday, which warrants careful consideration of the impact of accumulation on the period of parole. I would backdate the aggregate sentence to commence on 28 August 2029, so that it will expire on 27 August 2037. The non-parole period will expire on 27 August 2035, which extends the overall non-parole period by six months. The overall period of parole will be 5 years. The overall non-parole period ratio will be 78.94 per cent.

2. [51]

   Whether an overall non-parole period should be increased in the application of the principle of totality, especially if it exceeds 75 per cent of the total sentence, and if so to what extent, is to be assessed in the particular circumstances of each case. In the instant case, a modest increase is warranted by a combination of factors that includes: the limited extent to which the overall non-parole period is increased (a period of six months); the relatively minor subsequent increase in the overall non-parole period ratio (2.1 per cent; from 76.8 per cent to 78.9 per cent); the relatively lengthy period of parole that will remain (5 years); and the need to demonstrate additional overall punishment, particularly in view of the Threaten offences, which are markedly different in their nature from the respondent’s other offending and warrant a reflection of general deterrence and denunciation.

3. [52]

   CHEN J: I agree with Ierace J.